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Court to rule on Israel policy (UPDATED)

FINAL UPDATE:  3:31 p.m.  Expanded from an earlier version.

The Supreme Court agreed on Monday to rule on whether the president has the sole power to decide on the nature of the U.S. government’s formal relations with Israel.  That issue arises out of a dispute between the White House and Congress over whether Israel should be noted as the place of birth of a U.S. citizen born in Jerusalem.  At issue is the constitutionality of a 2002 law mandating Israel as the place-of-birth designation in that situation, if requested. (The case is Zivotofsky v. Kerry.)

The Court granted two other cases, the first dealing with the constitutional implications of a police traffic stop that turned out to be based upon a mistake by the officers (Heien v. North Carolina), and the second focusing on whether possession of a shotgun with a short barrel should be treated as a violent felony for purposes of federal criminal sentencing (Johnson v. United States).

For the nineteenth time this Term, the Court took no action Monday on the case of Ryan v. Hurles, testing when a federal court may overturn a state criminal conviction for failure to hold a hearing to weigh evidence on a key legal issue.  The Court has considered that case at every one of its private Conferences since late September.

The Zivotofsky case, involving the rights of a eleven-year-old boy born in a Jerusalem hospital to U.S. citizen parents, is at the Court for a second time.  The outcome of the case may have repercussions in U.S. policy toward tension in the Mideast, because at the center of the case is the status of Jerusalem in the eyes of U.S. policymakers.

Because of the sensitivity of competing claims by Israel and Palestinian people in Jerusalem, the U.S. government has held strongly to a position of neutrality, hoping not to disturb possibilities to negotiate peace in that region.  Congress stepped into the middle of that situation twelve years ago, ordering the State Department to enter “Israel” as the country of birth at the request of any U.S. citizen born in that city.

When the parents of Menachem Binyamin Zivotofsky tried to get his birth certificate changed to show his birthplace as “Israel,” the State Department refused, because of the neutrality policy.  The family’s first attempt to challenge that denial failed in lower courts, in a ruling that this was a “political question” beyond the reach of the courts.

The Supreme Court overturned that result two years ago, and ordered lower courts to rule on the constitutionality of the 2002 law.  The U.S. Court of Appeals for the District of Columbia Circuit struck down the law last summer.  The Zivotofsky family returned to the Supreme Court, seeking to have the law reinstated so that the boy’s birth certificate could be changed.  The Obama administration urged the Court to deny review, arguing that the D.C. Circuit got it right.

The Court chose instead to grant review.  This case, and the other two granted review on Monday, will be scheduled for decision in the new Term that starts in October.

Among cases denied review on Monday was a petition by Florida governor Rick Scott, testing whether a state may constitutionally require drug testing of all state employees, regardless of the kind of job they hold (Scott v. AFSCME Council 79).

Among cases the Court had considered but left without action Monday was the latest test of whether the Constitution’s Second Amendment protects the personal right to carry a gun outside the home.  That issue arises in a New Jersey case, Drake v. Jerejian.  The case has been scheduled for consideration again at the Court’s private Conference on Friday.


[Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in Heien at the certiorari stage through the Stanford Law School Supreme Court Litigation Clinic, but it will not participate in the case at the merits stage.  Moreover, the author of this post is not affiliated with Goldstein & Russell.]

Recommended Citation: Lyle Denniston, Court to rule on Israel policy (UPDATED), SCOTUSblog (Apr. 21, 2014, 9:58 AM),